IN THE CASE OF:	  

		BOARD DATE:	  14 DECEMBER 2010

		DOCKET NUMBER:  AR20100013732 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his general discharge to an honorable discharge.

2.  The applicant states he asked to get out early and he was given a chapter 13 or 14 for unsatisfactory performance.  His post traumatic stress disorder (PTSD) started after he returned from Grenada when his performance suffered and he was overwhelmed.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  His military personnel records show he enlisted in the Regular Army on 8 July 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).

3.  On 14 November 1980 he was assigned to the 2nd Battalion (Airborne),
325th Infantry, Fort Bragg, NC.  He was deployed to Grenada from 24 October to 
2 November 1983.

4.  A review of his official military personnel file (OMPF) shows he received formal counseling:

* in August 1983 for arriving late to formation and below average job performance and leadership
* on 28 August 1984 for missing formation
* on 4 September 1984 for missing formation
* on 18 September 1984 for missing formation
* on 29 October 1984 for indebtedness

5.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 19 October 1984 for being absent from his appointed place of duty.

6.  On 13 November 1984, he received a local bar to reenlistment.

7.  On 15 November 1984, the applicant's commander denied his request for rehabilitative transfer and notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 for unsatisfactory duty performance and his unwillingness and incapability to conform to military standards.

8.  The commander's letter advised the applicant of his right to consult with a consulting counsel, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of these rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander advised him the least favorable characterization of service or description of separation he would receive as a result of this action was a general discharge under honorable conditions.

9.  On 15 November 1984, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory 


performance.  The applicant did not submit a statement in his own behalf.  He further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

10.  On 26 November 1984, the appropriate authority approved his discharge for unsatisfactory performance and directed he receive a General Discharge Certificate.

11.  On 6 February 1984, he was discharged by reason of unsatisfactory performance.  He had completed 4 years, 5 months, and 10 days of active service that was characterized as under honorable conditions.

12.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to unsatisfactory performance when in the commander’s judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely

Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

14.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows he failed to respond to counseling and NJP under the UCMJ and continued to function and perform in a substandard manner.  He contends he suffers from PTSD which began after he returned from Grenada but there is no available evidence to support this claim.

2.  Further, the evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  A review of his record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X_______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100013732



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ABCMR Record of Proceedings (cont)                                         AR20100013732



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